Ken Lammers, former CLTV star, defense lawyer turned prosecutor extrardinaire, posits a provocative notion at Crimlaw.

Recently, I asked a number of fellow layers a simple question: is the law a reflection of morality or merely a way to organize society? Every single one, from those who are pragmatic, non-philosophical types to those whom I perceive to be deeper thinking, more theologically oriented answered that the law is there to organize society.

That’s more than a little disturbing. Law which orders society, but which is divorced from morality is dangerous. A society can be perfectly ordered and extremely well run and do terrible things.

Well, yeah.  Truer words were never spoken, Kenneth.  Had you asked me, I would have answered the same as your fellow lawyers, that law is (not should be, but is) merely a means of organizing society.  Why is there a law that requires drivers to keep to the right?  Why is there a law that says you can’t smoke dope in the comfort of your own home? 

We’ve got lots of laws that keep each of us feral cats from doing as we please.  Not because, standing alone, there’s a right or wrong to it, even assuming that we adopt the Judeo-Christian Ethic, but because there is just no moral implication to many of them.

And yes, it’s disturbing.  We put people in prison for being messy, for not complying with the orderly society we demand of others.  Malum in se is one thing, but we’ve top heavy with malum prohibitum.  And you know that Ken.  You really didn’t have to ask, did you?

But you didn’t take your point to the next level, so I will.  If it’s more than a little disturbing, why have you wilfully taken the job of societal janitor? 

It’s one thing to prosecute a person for murder.  And if that was as far as the job of prosecutor went, dealing with crimes that harm others and manifest a moral culpability that demands sanction, we wouldn’t be having this discussion.  But that’s not the job.  The job includes prosecuting people for crimes that harm no one but merely reflect a refusal to follow the rules we’ve created to maintain an orderly society. 

Putting aside the more interesting morality issues inherent in crimes such as prostitution from, say, a Buddhist perspective, what about the business that transport unadmitted customs cargo without proper permits and bonding?  That could buy someone five years in prison, because they don’t have the right forms.  Is morality at stake here?

Or more toward the state crime level, what of the enterprising fellow who mixes up his own flavor of meth in the backyard to sell to whoever feels that he would like to enjoy a lifestyle of bad hair, few teeth and lots of aimless gazing.  Why shouldn’t a person have the right to live the life of their choosing, provided they don’t harm anyone else in the process?  And if they have that right, why shouldn’t somebody make a living off them?  These aren’t moral issues, except by extending them, via presumption, to the harm that might accrue if they have to hit old ladies over the head to get the money to buy the meth.  What if they’re the beneficiary of a huge estate, and can afford to live the glorious life of a meth addict?  Who are we to say no?

Obviously, this isn’t to suggest that society should endorse meth addiction, but to make the point that we not only run a criminal justice system with the purpose of keeping the natives under control, but that prosecutors in an orderly society are the janitors, cleaning up the messes that society’s worst members leave behind.

It’s understandable that you’re deeply concerned that the perception of the system is cynical.  After all, given your focus these days, you should certainly want to believe that your efforts serve a higher purpose than just mopping up vomit. 

But since you asked the question and got an answer, what’s the next step?  If the system isn’t about morality, but merely keeping things neat, then how do you justify prosecuting people for making messes?  And how did you not notice that we’re all just guys with those pokey sticks picking up society’s waste on the side of the road?